ML20009B378

Memorandum Decision C-81-190 Rjm Holding That Case Challenging Constitutionality of Washington Radwaste & Storage & Transportation Act of 1980 Is Unconstitutional & Unenforceable.Motion for Summary Judgment Granted

ML20009B378
Person / Time
Site:	Three Mile Island
Issue date:	06/26/1981
From:	Mcnichols R U.S. DISTRICT COURT, EASTERN DISTRICT OF WASHINGTON
To:
Shared Package
ML20009B374	List: ML20009B373 ML20009B378 ML20009B380 ML20009B383
References
C-81-190-RJM, NUDOCS 8107150339
Download: ML20009B378 (13)

Text

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UNITED STATES DISTRICT COURT t

s [ EASTERN DISTRICT OF WASHINGTCN 4 )

s i WASHINGTCN STATE BUILDING & )

CCNSTRUCTION TRA>ES COUNCIL (

s , AFL-CIO , a Washington corporation )

j and labor organi:ation; WASHINGTON (

VOICE OF ENERGY, a nonprofit )

Washington corporation; U.S. ( No. C-81-154 RJM s ECOLOGY, INC., a California )

corporation: TRI-CITY NUCLEAR (

s INDUSTRIAL CCUNCIL, a nonprofic )

Washington corporation; TRI-STATE (

to MOTOR TRANSIT CO., a Delaware )

corporation; PRECISION CASTPARTS (

tt CORPCRATICN; an Oregon corporation;)

NORTHERN STATES POWER COMPANY, a (

, 12 Minnesota corporation; and )

CHEM-NUCLEAR SYS T.S, INC., (

13 a Washington corporation. ) *

( FILED W WE 14 Plaintiffs * ) U. S. DISTR:CT COURT

(

is -vs- ) '" " d ""' A is THE HONCRA3LE JOHN C. SPELLMAN, )

Covernor of the State of ( J. R. FALLQUIST, ClerK 17 Washington; THE HCNORABLE KENNETH )

EIKENBERRY, Attorney General of ( "e2uty.

Is State of Washington; and ALAN J. )

GISBS, Secretary of the State of (

ls Washington, Depart =ent of Social )

and Health Services, (

20 )

Defendants. (

)

UNITED STATES OF AMERICA, )

(

m Plaintiff, ) No. C-81-190 RJM j (

24 -vs- )

! (

M STATE OF WASHINGTON, JOHN C. )

i SPELLMAN, Governor of the State (

2s of Washington, and KENNETH O. )

l EIKENBERRY, Attorney General of (

rr the State of Washington. )

(

s j Defendants. ) MEMORANDUM DECISICN l l (

" j )

. m i si The plaintiffs in these cases cnallenge the constitution-22  ! ality of Washington's Radioactive Waste Storage and Transportation l

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i Act of 1980, adopted by the voters as Initiative Measure No. 383 2 l(Initiative). Since the plaintiffs' =otions for su==ary judg=ent t

3 l rest on substantially similar grounds, their =otions were joined

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l for purposes of argu=ent.

i s Cne of the plaintiffs, U.S. Ecology, Inc. operates one 8

! of the three active co==ercial nuclear waste disposal sites in l

7 the United States. It provides disposal services to the United a '

States, various state govern =ents and nu=erous ec==arcial users ,

8 throughout the country. The United States, in addition to being 38 a substantial user of the cec =ercial facility, also =aintains its u own disposal sites in Washington.

u The defendant (State) by the Initiative, seeks to

" effectively ban tne storage of all non-cedical radioactive waste 14 (waste) generated outside the State of Washington. The Initiative u

l also bans the transportaiton of such waste to any storage site in 18 Wasy.ington. The stated purpose of the Initiative was to proteer 17 the health and safety of the citizens of Washington. Although is the State contends that the provision in the Initiative for an is interstate co= pact =ight remove any i=per=issible ban on interstate m ec==erce, the Initiative Compact Section does not provide a n ,

ti=ely or effective exception to the ban.

i

= j The Initiative does not ban the transportation for i

a storage or the storage of waste generated in Washington. Nor does l

24  ! it ban the transportation of radioactive material threugh Washing-

! I s l ton for use or storage elsewhere. Consequently, the Initiative 1

l suggests that the pere e'.ved har=s caused by the waste occur af ter

' l n

l l' its disposal in the s : rage sites.

l n } The plaint ffs jointly contend that the Initiative I

m j violates the Commerce Clause, U.S. Const., Art. I, S 8, cl. 3 and

< :o lthat under the Supremacy Clause,

- U.S. Const., Art. VI, cl. 2, it si has been pree:pted by federal law. , (Ato=ic Energy Act, 42 U.S.C.

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$ $ 2011 et seq. , Low-Level Radioactive Waste Policy Act, Pub. L.

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lNo.96-573 (Dec. 23, 1980); Hazardous Materials Transportation Act, 2

l 49 U.S.C. $ $ 1801 et seq.). In addition, the United States contends s j that the Initiative violates t'e War Powers and Property Clacses 4 of the United States Constitutbn. With respect to the Co=erce s

l Clause, the State contends that the Initiative is valid as an a

f action of a market participant or as a proper exercise of th, 7 State's police powers. With respect to the Suprc=acy Claus'. the .

s State contends that the Initiative has not been preempta ' by s federal' law. I hold that the Initiative is unconsv..utional and to thus not enforceable.

It FACTS 12 This controversy centers en the transportation to and u storage of nuclear waste on the Hanford Reservation. This federal

reservation censists of 562 square miles of land and facilities

" in and around Benton County, Washington. Since 1943, the reserva-25 tion has been used for federal nuclear progra=s.

37 There are three storage areas on the reservation. The l

ts first two areas are owned and operated by the federal government.

I 18

! The first area provides storage for waste generated irc= federal

" . energy programs and national defense activities. The second area 2

contains a near-surface test facility which is designed to test 22 the feasibility of storing spent fuel and high-level waste in I

22

underground basalt formations. The third area arose out of a lease 2' f i

o f approximately 1000 acres by the United States to th* State of i

" i Washington. The State of Washington subleased appreximately 100

" of those acres to U.S. Ecology, Inc. for the operation of a low-

" level radioactive waste storage facility. Although there are two jother active coc=ercial facilities in the United States, the U.S.

, Ecology, Inc. site is the cnly existing cc==ercial facility which

" can store absorbed icw-level radioactive liquids.

The co==ercial site is licensed for its current activity

' by the State of Washington. The site is regt. lated under State i  !

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and Federal regulations pertaining to accmic energy and health and 2

l environ = ental protection. The Unftid States Department of Trans-3 portation regulates the transportation of the radioactive waste.

4

[ The low-level radioactive waste problem is of national 5 concern. S. Rep. No. 548, 96th Cong. (1980), reorinted in U.S.

8 l Code Cong. & Ad. News 11230. The latast Departr,ent of Energy 7 statistics indicate coe=ercial facilities generated over three 8  ! million cubic feet of low-level waste in 1980. Low-Level Ra'dio- '

l 8

• l active Waste Manage =ent Report (Draft Report, April 21, 1981).

18 By 1985, the figure is expected to increase to over five and a 11 1 i

Falf million cumic per year. &.

The co==ercial storage facility on the Hanford Reserva-u tion is a key facility in the nation's waste disposal program.

14 h ecifically, it is the on'ly ce==ercial storage site which can

. store " absorbed low-level radioactive liquids." Moreover, it

., accepted apptoxi=ately twenty-seven percent (277.) of the total l

17 waste in 1980. While a site in Barnwell, Sovth Carolina has been is accepting more than fifty percent (50*') .of the generated waste, a is l South Carolina "volu=e limitation program" will cut that site's

s l capacity to less than twenty-five percent (257.) of the waste 1

generated in 1985.

l I

- + The facts of this case present a classic supply and n {

demand problem. It is clear that there is a serious national

. j problem with the i:. creasing volume of waste, which cust be stored

s lso=ewhere, and a nearly si=ultaneous reduction of the already

s limited storage capacity. Congress has recognized this problem l :7  ! and taken steps to solve it to the end that a few states will

! not coatinue to bear the waste of many. If the Initiative were

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n l per=itted to stand it would aggravate an already critical situation .

so DISCUSSION si The Initiative is invalid for two reasons: it violates 32 the Supremacy Clause and the Ccer.erce Clause of the United States i

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. Constitution.

The Initiative violates the Supremacy Clause because it 3 seeks to regulate legiti= ate federal activity, and because it has 4 j has been pree=pted by federal law.

I s i If the Initiative seeks to regulate the transportation s for storage and storage of all federal waste generated outside r

l the State of Washington and the operation of the federal storage s l facilities, the Initiative violates the Supre=acy Clause. U."S. ,

l s Const., Art. VI, cl. 2. Since defendants' counsel are unable to to represent that the Initiative did not apply against the federal 18 govern =ent, I =ust, in light of the Initiative's' clear language, 12 assu=e that it does purport to apply to the federal govern =ent.

12 Therefore, I art ce=pelled to find that, to the extent that it is 14 applicable to the United States govern =ent, the Initiative, in is I the absence of an express Congressional waiver of sovereignty, is is j unconstitutional. Hancock v. Train, 426 U.S. 167 (1976); Mavo v.

tr l United States, 319 U.S. 441 (1943).

is The doctrine of federal pree=ption has its roots in the i

Supre=acy Clause. The issue is whether the federal govern =ent is 23 has pree pted the state regulation of high-level and low-level 21 l radioactive wastes.

= Since pree=ption =ay be de=enstrated in ei ther of two l

i

=  ! ways, =y function is to deter =ine: (1) Whether there is evidence l 24  : (pervasive federal sche =e or de=inant federal interest) that l

l :s hCongress intended to supersede the police powers of the State, a R'.ce v. Santa Fe _ avator Corp. , 331 U.S. 218, 230 (1947) or (2) 27 Whether the In stive " stands as an obstacle to the acco=plishment 2s l d executior 2 the full purposes and objectives of Congress."

s f Hines v. Davidewitz, 312 U.S. 52, 67 (1941).

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i so  ; By reviewing the pervasive federal statutory sche =es si for the regulation of radioactive waste, the Ato=ic Energy Act, l che Low-Level Radioactive Waste Policy Act and the Hazardous u

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e Materials Transportation Act, and applying established judicial I

l  : l reasoning, I am convinced that Ovngress intended tnat the trans-3 j portation and storage of all materials which pose radiation I i 4

l hatards vould be regulated by the federal government except where 5 jurisdiction was expressly ceded to the states. Northern States s l Fower Cocoany v. State of Minnesota, 44/ F.2d 1143 (CA8 1971),

i r  : aff'd, 405 U.S. 1035 (1972) (nuclear waste releases); Consolidated i d a Rail corocration v. City or Dover, 450 F. Supp. 966 (D. Del; 1978) s (hazardous freight and toxic =ateria..s).

to The State concedes, and the most recent legislative n history confir=s the fact that Congress has not expressly ceded u management of high-level radioactive waste. S. Rep. No. 548, u i 96th Cong., (1980), reorinted in U.S. Code Cong. & Ad. News 14 11231. Since it is clear that federal law preempts any state ban u en high-level waste, the only re=aining issue is whether Congress is has expressly ceded regulation of low-level wastes.

17 In this case, there are two federal expressions which is might be interpreted as a grant of such authority: (1) the is Agreement between the United States Atomic Energy Commission and a the State of Washington pursuant to Section 274 of tha Atomic n Energy Act (42 U.S.C. $ 2021), and (2) the Low-Level Radioactive n t Waste Policy Act, Pub. L. No.96-573 (Dec. 23,1980) .

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f Although the Section 274 Agree =ent expressly ceded n  ! qualified regulatory responsibility over byproduct materials, s source caterials and special nuclear materials, it did not cede a control over all low-level wastes. Also, the Agreement, by its n terms, contemplates "that State and Co==ission programs for g 3 . protection against hazards of radiation will be coordinated and I

a j compatible." Agreement at p. 2. Moreover, the Agreement recog-a nizes the desirability of reciprocal recognition of licenses.

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Agreement at p. 5. Further= ore, Cbagress granted the authority l

a f to regulate certain nuclear material. It did not grant the I

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t authority to effectively ban the receipt and disposal of such 2 =aterial. Finally, the Initiative was expressly based upon the 3 j State's police power to protect the health, safety and welfare of 4  ! the citi ens of Washington State. It was not premised on the l

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j Section 274 Agree =ent.

s Thus, neither the Agree =ent nor the statute. which f

7 authe 1:ed it represent an express grant of the authority to the s i State to effectively ban the storage or transport of low-level I

s radioactive waste.

Is The Low-Level Waste Policy Act, (Low-Level Act), does 11 constitute a valid but limited grant of authority to effectively 12 ban the storage of certain waste. The Low-Level Act is i=portant u for several reasons. First, it clearly excludes federal waste or 14 facilities from any action taken under a regional compact.

Is Second, the Low-Level Act recognizes the particularily

s l acute national problem of a high demand for storage and a dwindling i

17 supply of storage capacity. At the sa:e time, the Act recognizes is that those stater (Nevada, South Carolina and Washington) which Is provide the natioa's entire ce==ercial disposal system cannot be

o expected to continue to bear the burden of the other states'

waste proble=s.

Thirdly, the Low-Level Act presents a rational and

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equitable approach for resolving the waste disposal problem.

! Each state is new responsible "for providing for the availability

s of capacity either within or outside the State" for low-leval

s l radioactive waste disposal. Section 4(a)(1)(A) . The Low-Level i

27 Act recognizes that a regional approach affords the safest and

s i =ost efficient management. Section (4)(a)(1)(B). Congress has i

s j authorized the states to join interstate compacts to provide for I

, so regional disposal sites. Secticn 4(a)(2)(A). These cocpacts are at subject to approval by Congrrss. Af ter January 1,1986, any

. I 2: lsuchregionalcomea:tmayprecludedisposalofextra-regional l

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'twaste in the comeact's regional sites. Section 4(a)(2)(3).

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The State's argument that Congress, by this statute, 2 i ceded cc=plete authority to regulate is not persuasive because J'

4 'the statun merely makes each state " responsible for providing

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s for the availability of capacity."

4 The State contends that the Federal Low-Level "Jaste Act r j does not preclude the State from presently banning the importation of waste. Such an interpretatica of the statute is strained'.

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Congress has authorized the State to enter into interstate to co= pacts. After such cocpacts are approved by Congress, the it regions established thereby may exclude waste from without the is j region after January 1, 1986 g at such other times as Congress I

is may authorize.

is A close reading of the statute and the legislative is history reveals a Congressional plan to place future responsibility is on'the individual states to dispose of their waste. To encourage 17 individual state action, Congress made it clear to all states l

I is that if they did not make prov.'.sion for their own waste by January 13 1, 1986, they could be denied access to other regions' disposal M sites. At the same time, Congret s recognized that the organization 21 of regional ccepacts and construct).cn of disposal sites would

2 f take ti=e. Consequently, Congress expressly delayed any authorized

3 j ban en radioactive waste until January 1,1986. If I were to 24 ,

adop t the cententiens that Washington may ban waste today, the 25 l

State of Washingte would obstruct the efforts of Congress toward

{ an orderly resolution of a significant national problem.

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U  ! For the aforecentioned reasons, the Initiative cannot I

s withstand scrutiny under the Supremacy Clause, >

i 3 CCMMERCE CLAUSE l

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I The plaintiffs contend that the Initiative violates the 31 g 32 i

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. 6' pCc==erce Clause, U.S. Const. Art. I, 5 8, cl. 3, because it i discriminates against and interferes with inters tate ec==erce.

2 The State contends that the Initi'tive does not vislate the 3 .

4 Co==erce Clause because: (1) the interstate =cve=ent of radioactive s

{

vaste, unlike other substances, is not "ca==erce" within the s  ! =eaning of the Co==erce Clause, (2) the . tate is acting as a

j =arket participant; and (3) the Initiative is based upon a a per=issible exercise of the state's police powers. .

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s Both a co==on sense view of the facts and the principle to that "[a}ll objects of interstate trade merit Cc==erce Clause n ,

protection; none (arel excluded by definition at the outset (,]"'

u Philadclohia v. New Jersev, 437 U.S. 617, 622 (1978), (solid or u liquid waste), support . deter =inatica that the movement of 14 radioactive waste in interstate co==erce fits within the definition 15 of "co==erce" for constitutional purposes.

18 The State's contention that the Initiative cerely 37 reflects the action of a " market participant" and that as such

s the Initiative is beyond the reach of the Co==erce Clause is not 18 l persuasive. The Initiative is not a proprietary ceasure. The 3 clear language of the Initiative establishes that it is a regula-

" l cory measure. It purports to effectively ban the transport for 3 istorage and the storage of certain =aterial. It establishes

" ' civil and cri=inal penalties for violatiorn. Moreover, the 28 [ Initiative is based on a perceived need to protect the health and I

I safety of the citizens of Washington. It is not based on economics j "

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" or other factors traditionally associated with proprieta ry censures .

l N  ! Finally, the State, as a lessor, is engaged in the renta. business.

3 The real proprietors are the United States govern =ent as an a I operator of two federal sites and U.S. Ecology, Inc., as the 2  !

l operator of the co==ercial site. Having deter =ined that the =ove-21 I

ment of radioactive waste is "cc==erce" and that the State is nnt 22 a "=arket participant", I must now determine whether the Initiacire l

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- . - . . _  ; 5 i  ; is permissible as an exercise of Washington's police pcwers. I l

; hold that the State of Washingecn, through the Initiative, has 2 j exceeded its police powers.

I 4 j Unlike the situation in South Carolina State Hir5way i

s Decartment v. 3arnus11 Brothers. Inc., 303 U.S. 177 (1938),

s  ; Congress has established a pervasive statutory schece, in.this case ,

7 to regulate nuclear activity. Although Congress has ceded so=e a of this authority to the states, it has not granted the stat'es s the power to effectively ban the transpor:ation for storage or to the storage of radioactive waste generated outside Washington.

11 In the presence of such pervasive federal legislacion, the 12 Initiative cust be invalidated. Ca=obell v. Hussey, 368 U.S. 297 m (1961) (supplecental state tchacco regulation).

14 Even in the absence of federal legislation, "the Co==erce 15 Clause prevents the States from erecting barriers to the free flow is Rav=cnd Motor Transcortation, Inc. v.

( of interstate co==erce."

l Rice, 434 U.S. 429, 440 (1978). However, a sea:e statute uhten 17 i

is j affects co==erce does not viola:e the Cc==erce Clause if it is i

i designed to serve a legitimate state interes: and if it is applied I

M l in a nondiscriminatory manner. Id.. The court in such instances 21 lmus: =ake a " delicate adjus =ent of the conflicting s: ate and and n  ! federal clai=s." Creat Atlantic & Pacific Tea Co., Inc. v.

n Cottiell, 424 U.S. 366, 371 (1976), cuoting fro = H.P. Hood & Sons, 24 i Inc. v. Du Mond, 336 U.S. 525, 553 (Black, J. dissenting). The

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u traditional critarik for this " delicate adjustment" are set forth i // :s in Pike v. Bruce Church, Inc., 397 U.S. 137, 142.

i N  !

The Pike test centers on three key issues: (1) As

" a threshold issue, does the sca:e law regulate evenhandedly; M (2) Does the state law effectua:e a legitimate local public d

2 eurpo s e ; and (3) Does it have caly an incidental effect on 38 interstate co==erce. Assu=ing the'se questions are answered i

22 I in the affirmative, "the Ini:iative' will be upheld unless the t

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burdan i= posed on such cc==erce is clearly excessive in relation

i to the putative local benefits. . . " Id. .

This 'oalancing effort I

s i involves "a sensitive consideration of the weight and nature of I

4 l the state regulatory concern in light of the extent of the burden 5 I i= posed en the course of interstate co==erce." Rav=end Motor I

s Transoortation, Inc. v. Rice, suora at 441.

i 7 i The threshold issue =ust be answered in the negative, s Where, as here, a state " overtly blocks the ficw of interstate .

s cc==erce at [the] State's borders," Philadelchia v. New Jersey, to 437 U.S. 617, 624 (1978), the state statute on its face discrimin-u ates against interstate ce==erce on the basis of origin. Such tz j facial discrimination, regardless of the State's purpose, may is by itself provide a sufficient basis to invalidate the statute. Id.

14 Moreove.r. in light of the Initiative's implied exe=ptions and the u recent decision in Kassel v. Censolidated Freightwavs Corporation is j of Delaware , U.S. , 49 U.S.L.W. 4328 (March 24, 1981), it 17  ; is also clear that an application of the Initiative to the =ove=ent I

ts t of radioactive waste in interstate co==erce would discri=inate is against ec==erce. The exe=ptions in the Initiative, particularly 3

l the implied exemption of all radioactive vaste generated in n Washington, offers the benefits of available radioactive waste storage to Washington's nuclear industry and effectively denies 3 ' such benefits to the bulk of this country') nuclear industry.

24 . Moreover, since the Initiative impliedly exempts the shipment of 3 radioactive waste through the State and, by its ter=s, is directed i

8 I at the origin of the waste, it sould appear that the State has I

" l decided that the principal har= frc= radioactive waste arises i

3  ! after its dispcsal in a storage site. Thus, there is no basis to I

" distinguish waste generated in Washington fro = waste generated in

"  ! other states. In short, the Initiative on its face and in its i

3 plain effect is unconstitutional because it does not regulate

" evenhandedly. See Kassel v. Censolidated Freizhtways, suora; i

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t :Philadelohia v. New Jersev, suora.

! Even if such facial and substantive discrimination is not I.

3 j a per se fatal defect, "such facial discri=ination invokes the i

4 strictest scrutiny of any purported legiti= ate local purpose and l

5  ! of the absence of nondiscriminatory alternatives." Hughes v.

I s 0klaho=a, 441 U.S. 322, 337 (1979). The Initiative c nnot with-7 i stand such scrutiny.

I I While it has been held that "if safety justificati' ens ,

s are not illusory, the Court will not second-guess legislative to j ud g=ent ," Rav=ond Motor Transoortation, Inc. v. Rice, suora at 11 j 449, (Black =un, J. concurring) , the =ere incantation of "a purpose 12 l to pro =ote the public health or safety does not insulate a state u l law from Coc=erce Clause attack." Kassel v. Consolidated I

14  ! Freightwavs, U.S. , 49 U.S.L.W. 4328, 4330 (March 24, l

4 { 1981). This should be particularly true where, as here, the is state law is a product of the Initiative process and not a ir j product of the =cre detailed and deliberate approach normally is associated with the state legislature.

ts Moreover, when discri=ination against co==erce is a i de=enstrated, the State has the burden of demonstrating the local 21 benefits flowing fro = the state statute and the unavailability of

= j adequate nondiscriminatory alternatives. Hunt v. Washington Aeole 3 I Adve rtis ing Co==' n. , 432 U. S. 333, 353, (1977). Here the defen-

4  ! dants have failed to present evidence that non-cedical radio-3  ! active waste, transported and stored in compliance with Federal

s regulations, is dangerous to the health and safety of the citizens n of the State of Washington. Indeed, a recent study by the 21 Department of Social and Health Services of the State of Washing-3 ton suggests that nuclear waste, if properly ragulated, can be M safely transported and also suggests that there are less discrimin-31 atory means to protect the public. See Stipulation of Authenticity n ' of Documents, Exhibit 10. The closing sentence of the report's i

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• Abstract is parti.ularly instructive:

None of our studies detected serious personnel i

exposure problems, but further reductions can 3

j be obtained through the institution of better i storaFe Procedures, quicker handling techniques

• ! and =Jintaining greater discances from radiation sources.

5 {

l e  ; Finally, the Initiative will clearly have more than I

y an incidental effect en interstate co==erce. As noted earlier, a Congress and the Depart =ent of Energy have noted the rapid growth

, of radioactive waste and the reduction in storage capacity. The to Initiative will aggravate this national problem.by substantially si reducing all low-level radioactive waste storage and by precluding u any co==ercial storage of absorbed low-level radioactive liquids.

is Even if I were to consider the weight and nature of the

i. J state regulatory concern in light of the extent of dhe burden on I

is interstata coe=erce, I would still hold that the Initiative is j violates the Co==erce Clause. Since the State's safety interest, 17 assuming proper co=pliance with adequate regulations, is at is least arguably illusory and since the Initiative significantly is i= pairs the federal interest in encouraging the peaceful use of I

m j radioactive caterial and in solving the radioactive waste problem, i

21 the Initiativ. cannot be har=enized with the Co==erce Clause.

t.

= l CONCLUSION n For the aforecentioned reasons, I hold that the

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Initiative is unconstitutional and thus unenforceable. Therefore, 3 l plaintif fs' Motions for Su==ary Judgment are CPANTED. The Clerk S shall enter judgment accordingly.

" , IT IS SO ORDERED.

s DONE BY THE COURT this of June, 1981.

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j RC#erf Unic J. McNicholf d cates District Judge 1

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